Citation Nr: 1807286 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-26 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a brain disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a right ankle disorder. 6. Entitlement to service connection for a left hand disorder. 7. Entitlement to service connection for a right hand disorder. 8. Entitlement to service connection for a neck disorder. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1990 to January 1993, and he had additional service in the Navy Reserve. These matters come before the Board of Veterans' Appeals (Board) from a December 2013 rating decision by the Department of Veterans Affairs, Regional Office, located in Atlanta, Georgia (RO), which denied the benefits sought on appeal. In September 2017, the Veteran testified before the undersigned during a Board hearing held via videoconference capabilities. A transcript of that hearing has been associated with the claims folder. During the hearing, the Veteran indicated his desire to withdraw from appeal the claim for service connection for brain disorder; that matter is being formally dismissed, below. The issues of entitlement to service connection for low back, bilateral knee, bilateral hand, right ankle, and neck disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT In September 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw from appeal the claim service connection for brain disorder. CONCLUSION OF LAW The criteria for withdrawal of the appeal as the claim for service connection for brain disorder are met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the September 2017 hearing, the Veteran notified the Board that he wished to withdraw from his appeal the claim of entitlement to service connection for a brain disorder. Shortly thereafter, he submitted his desire to withdraw his claim in writing. Thus, no allegations of errors of fact or law remain for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review this matter, and it must be dismissed. ORDER The appeal as to the claim for service connection for brain disorder is dismissed. REMAND The Veteran seeks entitlement to service connection for low back, bilateral knee, bilateral hand, right ankle, and neck disorders. He contends that his current disorders are related to his period of service. Initially, the Board notes that the Veteran has provided a waiver initial consideration of the evidence received by VA. However, a review of record shows that relevant records from the Social Security Administration (SSA) were received in February 2015, which comes after the issuance of a June 2014 statement of the case (SOC) but prior to certification of the appeal in September 2015. Initial consideration of evidence received prior to certification of the appeal is beyond a waiver by a claimant. See 38 C.F.R. §§ 19.31, 19.37 (2017). A remand is needed in order to issue the Veteran a supplemental statement of case (SSOC) based on consideration of the additional evidence received prior to certification of the issues on appeal. In addition, on remand, the Veteran should be afforded with new VA examinations in conjunction with his claims for service connection for low back, bilateral knee, bilateral hands, and right ankle disorder. A review of the Veteran's service treatment records shows complaints and treatment involving the right and left hands, and complaints of low back pain. The service treatment records also show a right hand abnormality, status post operation three months ago, was noted on his July 1989 enlistment examination report. A September 1989 medical statement noted that the Veteran suffered a laceration injury to his right third finger that required repair of the extensor tendon, and there were no complications following the surgery. He was later assessed with subluxation of the extensor tendon of the right third digit in March 1992. In addition, during the September 2017 Board hearing, the Veteran testified to various injuries involving his low back, knees, hands, and right ankle during his period of service from general work, physical training, and sports while serving aboard naval ships. The Veteran also indicated that the 1995 motor vehicle accident was not during a period of reserve duty. The Veteran was afforded with VA examinations in November 2013 in conjunction with his low back, right ankle, and bilateral hands. No opinion was provided regarding the etiology of the Veteran's right ankle disorder, and the medical opinion pertaining to the Veteran's low back disorder does not adequately discuss how his current complaints are not related to complaints in service. Also, the VA examiner did not provide a medical opinion regarding the etiology of x-ray evidence of arthritis in fingers and hands, or discuss the right hand injury noted prior to service. In addition, the Veteran has submitted a September 2017 medical statement from his treating VA physician that links his current low back and bilateral knee disorders to his period of service based on the Veteran's reported history. However, the VA physician did not adequately discuss the injuries that the Veteran sustained from a 1995 motor vehicle accident, including fractures to L2 vertebra and right tibial plateau, which occurred after his separation from active service. Based on the foregoing, the Board finds that the Veteran should be afforded with new VA examinations to determine the nature and etiology of the Veteran's low back, bilateral hands, bilateral knees, and right ankle disorders. Accordingly, the case is REMANDED for the following action: 1. Update the claims folder with the Veteran's VA treatment records dated since November 2017. 2. Contact the Veteran and seek his assistance in identifying any outstanding records of pertinent treatment. 3. Schedule the Veteran for a VA examination in order to obtain medical opinions on the nature and etiology of his claim low back, bilateral knee, bilateral hand, and right ankle disorders. The examiner must review the entire claims file, and conduct any necessary testing. In the medical report, the examiner should record the Veteran's reported medical history and findings from clinical evaluation. a. The examiner is to diagnose any low back, left and/or right knee, left and/right hand, and right ankle disorder the Veteran has had during the pendency of the appeal, even if such disorder has resolved. b. With respect to any diagnosed low back disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the diagnosed disorder originated during active duty or is otherwise etiologically related to service. In doing so, the examiner is asked to consider the in-service complaints of low back pain as well as the Veteran's reported medical history of injuries to his low back from general work, training, and sports during service as well as the injury to the lumbar spine sustained in a 1995 MVA. The examiner should also consider the September 2017 VA physician's medical statement. c. With respect to any diagnosed left and right knee disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the diagnosed disorder originated during active duty or is otherwise etiologically related to service. In doing so, the examiner is asked to consider the Veteran's reported medical history of injury to his knees in service from general work, training, and sports, as well as medical records of injury to his right knee sustained in a 1995 MVA. The examiner should also consider the September 2017 VA physician's medical statement. d. With respect to any diagnosed left hand disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the diagnosed disorder originated during active duty or is otherwise etiologically related to service. In doing so, the examiner is asked to consider the in-service treatment for left thumb injury in October 1991 as well as Veteran's reported medical history of injury to his hand in service. e. With respect to diagnosed right hand disorder involving third finger extensor tendon, is it at least as likely as not (i.e., probability of 50 percent) that the Veteran's pre-existing third finger extensor tendon permanently increased in disability during active duty? If it was permanently increased, is there clear and unmistakable (obvious, manifest and undebatable) evidence that the right third extensor tendon did not increase beyond the normal progression of the disorder during active duty. f. With respect to any diagnosed right hand disorder other than third finger extensor tendon, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or better probability) that the diagnosed disorder originated during active duty or is otherwise etiologically related to service. In doing so, the examiner is asked to consider the Veteran's reported medical history of injury to his hand in service, as well as medical records of injury to his right brachial nerve sustained in a 1995 MVA. The examiner is to provide a complete rationale for each opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If the examiner is unable to provide any required opinion, he or she should explain why. 4. Thereafter, readjudicate the claims on appeal in consideration with all the evidence since the June 2014 statement of the case (SOC). If the benefit sought is not fully granted, issue a supplemental statement of the case (SSOC) before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs